Insights - October 2, 2018

Law360: Try Using Neutrals For State Court ESI Disputes

By Robert Wilkins

The demands on our state and federal courts to resolve disputes concerning electronically stored information ("ESI") continue to grow exponentially. However, our state court judges face challenges beyond those of the federal judiciary. Federal district court judges have law clerks and magistrate judges for ESI related discovery issues. The magistrate judges have their own law clerks to assist them. State court judges are not as well supported. With a growing caseload and shrinking court budget, the burden on state court judges to handle their dockets as well as keep up-to-date of the rapidly changing ESI related law and technology is substantial. This article proposes a way for trial counsel to lessen that burden for state trial courts.

The mandated goal in all litigation is to "secure the just, speedy, and inexpensive determination of every action.[1]” It is the responsibility of the courts and the attorneys to work together to achieve that goal. To do so requires an understanding of the applicable law and available technology concerning ESI related issues. Acquiring that knowledge requires a daily commitment to keep abreast of the growing body of case law and evolving technology. The time and commitment necessary to do so is amplified by the recently increased focus in both federal and state law on proportionality factors in discovery.[2] This obligation extends well beyond choosing an outside vendor to collect, process, and provide a review platform. Simply put, an attorney cannot delegate to another his or her obligation to provide competent representation to the client.

The Comment to Fla.R.Civ.P. 4-1.1 (Competence), amended effective January 1, 2017, identifies the lawyer’s need to have an “understanding of the benefits and risks associated with the use of technology” when representing a client. For example, even before a lawsuit is filed, competence requires the lawyer to know when a legal dispute is “reasonably anticipated” such that the duty to preserve evidence arises. Competence requires the lawyer to have the knowledge and ability to meaningfully implement and monitor a litigation hold to meet the client’s preservation obligations. It is beyond the scope of this article to address what the lawyer must know to meet the standard of care required to avoid ethical and potential malpractice issues. The purpose is to suggest and promote cooperation among counsel at the outset of litigation and, when necessary, to enlist the assistance of an independent neutral with the expertise to assist the parties to meet their respective obligations concerning ESI related issues.

To this end, as soon as possible, counsel should meet and confer in an attempt to resolve potential ESI related issues raised in the lawsuit. While this process is mandated in federal court and suggested in Fla.R.Civ.P. 1.201(b)(J) for complex litigation, it is not expressly required in litigation that is not designated as complex, unless provided for in an individual judge’s divisional instructions or in certain circuits. Whether mandated or not, cooperating in an attempt to resolve ESI disputes is the best practice in any state court action. The goal is to try to reach consensus on the ESI related issues. Hopefully, the culmination of these efforts will result in an agreed ESI Protocol that governs the ESI issues from the outset.

However, when consensus cannot be reached on certain issues related to ESI discovery, attorneys should consider using an attorney with technological competence and knowledge of the applicable law governing ESI related issues to act as a neutral. By consenting to use a neutral to assist in resolving ESI related disputes, the parties avoid delay and substantially reduce the costs necessary to move past the ESI related discovery issues.

The parties have the freedom to use the neutral to whatever extent they choose. For example, they can agree that the neutral is only authorized to act as a mediator; albeit one that can use their specialized knowledge in an effort to guide the parties towards a resolution of the issues. Alternatively, the parties can agree that the neutral is empowered to hear evidence and provide a report and recommendation to the court, much as a federal magistrate does. The point is, the parties control the process and the authority provided to the neutral. In return, the neutral provides the parties with the benefit of their expertise and a more expeditious means to potentially resolve ESI discovery disputes.

Otherwise, in most instances, the resolution of any substantive ESI dispute will require an evidentiary hearing with expert testimony and the associated costs. For example, if the parties do not agree whether to use search terms, predictive coding, or a combination of both, the court would have to hear evidence from the parties and their respective experts on the risks, benefits, and costs associated with each alternative. This is but one example of a multitude of other potential ESI disputes that would require court intervention. For a hearing requiring more than one hour, the court typically sets the matter on a trial docket. Resolution of the ESI discovery dispute must wait until it can be reached on a trial docket. In the process, other discovery is delayed and the length and associated cost of the litigation increased.

Fla.R.Civ.P. 1.490(b) allows for the appointment of attorneys as special magistrates with the consent of the parties, and details the powers, duties and procedures that govern the special magistrate. However, the Rule specifies that "[m]agistrates shall not practice law of the same case type in the court in any county or circuit the magistrate is appointed to serve."[3] Taken literally, this Rule prevents the parties in a commercial litigation action from using any commercial litigator in the county where their suit is pending as the magistrate. In addition, while the parties’ consent is required for the appointment, Rule 1.490 grants broad authority to the special magistrate to handle the matter referred. These two aspects of Rule 1.490 will most likely weigh heavily against the parties consenting to the appointment of a special magistrate on ESI issues.

There exists, however, a means by which the attorneys can better control the process and still achieve the goal suggested in this article. Fla. R. Jud. Admin. 2.505(d) allows parties to stipulate "concerning the practice or procedure in an action…" This arguably permits the parties to stipulate to a neutral having all, some, or none of the general powers and duties and to follow any or all of the procedures provided for in Fla.R.Civ.P. 1.490. This approach allows the parties to control the extent and means for which the neutral will be used.

Similarly, Fla.R.Civ.P 1.201, which governs Complex Litigation, further supports the approach suggested in this article. Subdivision (b)(1)(K) requires the parties to discuss the advisability of referring matters to "a magistrate ... [or] other neutral." Subdivision (b)(1)(J) requires the parties to confer on the possibility of obtaining agreements concerning ESI related issues. There is no reason the parties can’t agree to follow these suggested procedures in any action, complex or otherwise.

Short of ultimately resolving the parties’ ESI disputes, an ESI neutral can certainly help to narrow the issues raised by those disputes in order to make a more efficient presentation to the court for resolution. By following this suggested approach, the parties not only lessen the burden on the trial court concerning ESI disputes, they can better accomplish the goal of a speedy and inexpensive resolution of the action.

This article is reprinted with permission from Law360.

[1] Fla.R.Civ.P. 1.010

[2] Fla.R.Civ.P. 1.280(d)(2).

[3] Fla.R.Civ.P. 1.490(b)